Haroon (Migration)

This matter concerned an application for review by Mr Qasim Haroon of a decision by a delegate of the Minister for Immigration to refuse to grant him a Skilled (Provisional) (Class VC) visa, Subclass 485. The applicant had lodged his visa application on 28 December 2017, and the delegate refused the application on 24 January 2018, on the basis that the applicant had not demonstrated the required English language proficiency. Mr Haroon appeared before the Tribunal on 15 March 2019 to present his case.

The central legal issue before the Tribunal was whether Mr Haroon satisfied clause 485.212 of the Migration Regulations 1994, which mandates that an application for a Subclass 485 visa must be accompanied by evidence of either holding a specified passport or having undertaken a specified language test within a specified period and achieved a specified score. The relevant instrument, IMMI 15/062, detailed these requirements. The Tribunal noted that Mr Haroon did not hold a specified passport, meaning he had to satisfy the language test requirement under clause 485.212(a).

During the review hearing, Mr Haroon confirmed he had not undertaken an English language test within the three years preceding his visa application. He explained that an earlier IELTS test he had taken, which achieved an overall score of 6.5, was no longer valid due to the three-year currency requirement. He stated that he was unaware of this timeframe when lodging his application and, due to compressed timeframes and a holiday period, was unable to book a new test before his Student visa expired and before the visa refusal. The Tribunal considered that the applicant's answer to a question on the visa application form, indicating he had not met the English language requirement through a recent test or specified passport, suggested he did not meet the criteria.

The Tribunal found that the applicant had not met the requirements of clause 485.212(a) as the English language test he had undertaken was not within the specified three-year period. The Tribunal concluded that it had no power to waive this limitation, even in light of the applicant's stated special circumstances. Consequently, the Tribunal affirmed the delegate's decision to refuse the visa.